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2006 DIGILAW 521 (ORI)

Oriental Insurance Co. Limited v. Kumari Swain

2006-07-14

L.MOHAPATRA

body2006
JUDGMENT L. MOHAPATRA, J. : Both the appeal and the writ application are directed against the judgment and award passed by the 2nd M.A.C.T. (S.D.), Berhampur. The writ application has been filed against the award passed in M.A.C. No.77 of 1992 whereas the appeal has been filed against the award passed in M.A.C. No.166 of 1993. Both the claim cases arise out of the same accident and the claim petitions were disposed of in a common judgment giving rise to the aforesaid appeal and the writ application. In view of the above, both the cases were heard together and are disposed of in this common judgment. 2. Facts leading to filing of the claim petitions are that on 15.4.1991 at about 10.15 A.M. one Abhi Swain was driving a truck bearing registration No.OSG-336 towards Hinjilicut from Berhampur carrying one Rajednera Prasad Satpathy and Bancha Mallik. At that time another truck bearing registration No. ORR-3349 being driven in a rash and negligent manner came from the opposite direction and dashed against the truck in which the claimants and the deceased were traveling near Sompur. As a result of the accident Abhi Swain, driver of OSG-336 died and two other occupants namely Rajendra Prasad Satpathy and Bancha Mal¬lick sustained injuries. The legal heirs of deceased Abhi Swain filed M.A.C. No.116/93 out of which appeal arises and the injured Bancha Mallick filed M.A.C. No.77 of 1992 out of which the writ application arises. Other injured Rajendra Prasad Satpathy also filed M.A.C. No.46 of 1992, but the owner of the offending vehi¬cle was directed to pay compensation to Rajendra Prasad Satpathy and therefore another writ application filed by the Insurance Company against the said award was withdrawn and both the cases were heard together. 3. The owner of the offending truck did not contest in all the three cases and was set ex parte. Owner of the truck bearing registration No.OSG-336 also did not contest the case and was set ex parte. Oriental Insurance Company Limited insurer of ORR-3349 (appellant/petitioner before this Court) entered appearance and filed a common written statement denying the allegations made in the claim petition and disowned the liability to pay any compen¬sation. United India Insurance Co. Owner of the truck bearing registration No.OSG-336 also did not contest the case and was set ex parte. Oriental Insurance Company Limited insurer of ORR-3349 (appellant/petitioner before this Court) entered appearance and filed a common written statement denying the allegations made in the claim petition and disowned the liability to pay any compen¬sation. United India Insurance Co. Ltd., insurer of OSG-336 filed separate written statement taking a stand that the said truck did not have an insurance policy on the date of accident and that the accident was not caused due to rash and negligent driving of the said truck. It was additionally pleaded that due to rash and negligent driving of the driver of the offending vehicle (ORR-3349) the accident took place and therefore it has not liability to pay any compensation. 4. On the pleadings of the parties the Tribunal framed four issues. With reference to the evidence adduced before the Court the Tribunal held that due to rash and negligent driving on the part of the driver of the truck ORR-3349 the accident took place resulting in death to one and injury to others. Legal heirs of deceased Abhi Swain had claimed compensation of Rupees two lakh. The Tribunal on analysis of evidence assessed income of the deceased Abhi Swain at Rs.2000/- per month and allowed compensa¬tion of Rs.1,80,000/-. So far as injured Bancha Mallick is concerned, he had claimed compensation of Rs.20,000/- and the Tribunal on analysis of the injury sustained by him granted compensation of Rs.4000/-. Apart from the above, the Tribunal further directed for payment of 9% interest per annum from the date of application till realization. 5. Shri Dutta, learned counsel appearing for the appellant and the petitioner in both the cases challenges the award basi¬cally on two grounds. According to Sri Dutta, the finding of the Tribunal that the accident took place due to rash and negligent driving on the part of the driver of the truck bearing registra¬tion No.ORR-3349 cannot be sustained in view of the documentary evidence available on record. In this connection, reference was made by the learned counsel for the petitioner to the F.I.R. (Ext.1). The informant has stated in the F.I.R. that both the trucks were being drive in a rash and negligent manner resulting the accident. In this connection, reference was made by the learned counsel for the petitioner to the F.I.R. (Ext.1). The informant has stated in the F.I.R. that both the trucks were being drive in a rash and negligent manner resulting the accident. Referring to the charge-sheet (Ext.11) Shri Dutta submitted that both the trucks were found to be rash and negli¬gent in driving resulting in the accident but the charge-sheet could not be filed against a driver, deceased Abhi Swain because of his death. In view of such evidence available on record it was contended by the learned counsel Sri Dutta that the accident took place due to contributory negligence on the part of both the drivers and therefore the appellant/petitioner cannot be saddled with the entire liability and the said insurance company namely United India Insurance Co. Ltd. Should be saddled with 50% of the liability. Learned counsel appearing for the claimants-respond¬ents, on the other hand, submitted that the oral evidence on record clearly shows that the driver of the offending vehicle ORR-3349 was being driven in a rash and negligent manner causing the accident, and no evidence has been led on behalf of the insurance company to show that both the trucks were being driven in a rash and negligent manner. Shri A. K. Mohanty, learned counsel appearing for the re¬spondent-Insurance company submitted that even if contention of Sri Dutta is accepted the respondent-insurance company is not liable to pay any compensation in view of the fact that the de¬ceased and the insured were occupants of the truck which has been insured by the said insurance company and cannot treated as a third party. In the case of Municipal Corporation of Greater Bombay v. Shri Laxman Iyer and another, reported in 2003 AIR SCW 5505 the Apex Court analyzed the contributory negligence in the following manner. In the case of Municipal Corporation of Greater Bombay v. Shri Laxman Iyer and another, reported in 2003 AIR SCW 5505 the Apex Court analyzed the contributory negligence in the following manner. “The act of omission amounting to want of ordinary care or in defiance of duty or obligation on the part of the complaining party which conjointly with the other party’s negligence was the proximate cause of the accident renders it one to be the result of contributory negligence.” Shri Dutta, learned counsel appearing for the appellant/petitioner also relied upon a decision of the Apex Court in the case of Tamil Nadu State Transport Corporation, Tanjore v. Nataranjan and others, reported in 2003 (3) Supreme 698 and submitted that the appellant petitioner owns liability to pay 50% of the compensation. 6. P.W.1 is the wife of the deceased Abhi Swain. Though she is not an eye witness to the occurrence she has supported the statements made in the claim petition. Bancha Mallick who is an injured has been examined as P.W.2. He in his deposition has stated that he was working as labour in a truck bearing registra¬tion No.OSG-336 and on the date of accident when they were trav¬eling in the said truck, the offending truck bearing registration No.ORR-3349 came from the opposite side being driven in a rash and negligent manner and dashed against their truck, as a result of which Abhi Swain died and other occupants including him were injured. Such is the evidence adduced before the Court through witnesses, whereas the F.I.R. which has been exhibited as Ext.1 on behalf of the claimant-respondent shows that both he trucks were being driven in a rash and negligent manner resulting in the accident. Charge-sheet (Ext.11) shows that on 15.4.91 at about 10.15 A.M. the driver of the truck bearing registration No.ORR-3349 was driving the vehicle in a rash and negligent manner on the public road and dashed against the other truck bearing regis¬tration No.OSG-336. In the concluding portion it is stated that the driver of the vehicle (OSG-336) namely deceased-Abhi Swain having died in the accident the offence has abated against him and the charge-sheet is filed only against the driver of other vehicle (ORR-3349). In the concluding portion it is stated that the driver of the vehicle (OSG-336) namely deceased-Abhi Swain having died in the accident the offence has abated against him and the charge-sheet is filed only against the driver of other vehicle (ORR-3349). Allegations made in the F.I.R. coupled with the observations made by the I.O. in the charge-sheet clearly prove that the driver of both the trucks were negligent in driv¬ing their respective trucks, as a result of which the accident took place. If the facts of the present case are considered in the light of the decision of the Apex Court as decided in the case of Municipal Corporation of Greater Bombay v. Shri Laxman Iyer and another (supra), it is clear that the accident was caused due to the negligence on the part of drivers of both the vehicles. I, therefore, accept the contention of Sri Dutta, learned counsel appearing for the appellant/petitioner and hold that both the drivers were negligent in driving their respective vehicle as a result of which the accident took place. 7. So far as the quantum of compensation is concerned, Shri Dutta, learned counsel appearing for the appellant/petitioner submitted that compensation awarded to the legal heirs of deceased Abhi Swain is on the higher side. On perusal of the discussions made by the Tribunal I find that the income of the deceased had been assessed at Rs.2000/- per month and it cannot be said that the driver of a heavy motor vehicle does not get salary of Rs.2000/- per month. On this count I do not find any force on the contention of Sri Dutta. Learned coun¬sel for the appellant/petitioner submitted that Tribunal applied 15 multiplier considering the age of the deceased Abhi Swain which is also not correct. Deceased Abhi Swain was aged about 30 years on the date of accident and therefore application of 15 multiplier is just and proper. I, therefore, decline to interfere so far as the quantum of compensation is concerned. 8. Last contention of the learned counsel for the appel¬lant/petitioner is that grant of 9% interest per annum is not justified and the Supreme Court in a recent decision has granted 7.5% interest. The accident took place in April, 1991 and the Tribunal disposed of the case in 1994. 8. Last contention of the learned counsel for the appel¬lant/petitioner is that grant of 9% interest per annum is not justified and the Supreme Court in a recent decision has granted 7.5% interest. The accident took place in April, 1991 and the Tribunal disposed of the case in 1994. Considering the pre¬vailing rate of interest at that point of time, I am of the view that grant of 9% interest per annum is not excessive.I also decline to interfere on this count. 9. In view of the discussion made above, I allow this appeal as well as the writ application in part holding that the accident took place due to contributory negligence on the part of drivers of both the vehicles and therefore the appellant/petitioner company is liable to pay 50% of the compensation awarded by the Tribunal. Rest 50% cannot be recov¬ered from the respondent-insurance company and the same has to be borne by the owner of the respective vehicles. Considering the provisions contained in Section 149 of the Motor Vehicles Act, the appellant/petitioner company is given permission for recovery of 50% of the compensation from the owners of both the vehicles in a proceeding to be initiated against the said owners in the Tribunal. It is, therefore, further directed that the appellant/petitioner shall be permitted to proceed against the owners of both the vehicles for recovery of 50% of the compensa¬tion payable to the claimants and in the proceeding the Tribunal shall direct the owners of both the vehicles to furnish security within a specified time failing which their properties including the vehicles be attached. The above process be completed within a period of four months and in the event the said process is not completed the proceeding may continue but the amount of compensa¬tion be released in favour of the claimants-respondents. From the record it appears that only statutory deposit has been made before this Court. The said statutory deposit along with accrued inter¬est be refunded to the appellant and the total compensation in both the cases with interest as directed by the Tribunal be deposited before the Tribunal within a period of two months from today. Appeal allowed and application allowed in part.